868 F.

2d 1342
57 USLW 2513, RICO Bus.Disp.Guide 7153

NORTHEAST WOMEN'S CENTER, INC., Appellant in No.

88-1268
v.
Michael McMONAGLE, Joseph P. Wall, Roland Markum,
Howard
Walton, Henry Tenaglio, Stephanie Morello, Annemarie Breen,
Ellen Jones, Kathy Long, Susan Silcox, Paul C. Armes, Walter
G. Geis, John J. O'Brien, James Codichini, Patricia Walton,
John Breen, Dennis Sadler, Joan Andrews, Miriam Dwyer,
Mary
Byrne, John Murray, Linda Corbett, Thomas McIlhenny,
Patricia Ludwig, Gerrald Lynch, Margaret Caponi, Deborah
Baker, Thomas Herilhy, Pasquale Varallo, John Stanton, Anne
Knorr, John Connor, Elliott Stevens, Harry Hand, Laurie
Wirfell, Helena Gaydos, Robert Moran, Earl Essex, Patricia
McNamara, Donna Andracavage, Juan Guerra, and Linda
Hearn.
Appeal of Michael McMONAGLE, Dennis Sadler, Mary
Byrne,
Deborah Baker, Margaret Caponi, Thomas Herlihy,
Anne Knorr, and Robert Moran.
Appeal of John J. O'BRIEN, Joseph Wall, Roland Markum,
Howard Walton, Patricia Walton, Henry Tenaglio, Stephanie
Morello, Annemarie Breen, Ellen Jones, Kathy Long, Susan
Silcox, Paul Armes and Walter Gies.
Appeal of Patricia McNAMARA and Thomas McIlhenny.
Appeal of Donna ANDRACAVAGE, Juan Guerra, and Helena
Gaydos.
Nos. 88-1268, 88-1333, 88-1334, 88-1335 and 88-1336.

United States Court of Appeals,

Third Circuit.

Argued Oct. 20, 1988.

Decided March 2, 1989.
Rehearing and Rehearing In Banc Denied March 30, 1989.

Edmond A. Tiryak (argued), Julie Shapiro Philadelphia, Pa., for appellant,

Northeast Women's Center, Inc.
Christine Smith Torre (argued), Philadelphia, Pa., for appellees/crossappellants, Michael McMonagle, Dennis Sadler, Mary Byrne, Deborah
Baker, Margaret Caponi, Thomas Herlihy, Anne Knorr and Robert
Moran.
Charles F. Volz, Jr. (argued), Philadelphia, Pa., for appellees/crossappellants, John J. O'Brien, Joseph Wall, Roland Markum, Howard
Walton, Patricia Walton, Henry Tenaglio, Stephanie Morello, Annemarie
Breen, Ellen Jones, Kathy Long, Susan Silcox, Paul Armes and Walter
Gies.
Thomas J. Short (argued), Oreland, Pa., for appellees/cross-appellants,
Patricia McNamara and Thomas McIlhenny.
Joseph P. Stanton (argued), Iovine & Woods, P.C., Philadelphia, Pa., for
appellees/cross-appellants, Donna Andracavage, Juan Guerra and Helena
Gaydos.
Laura E. Little, David S. Thalheimer, Dechert, Price & Rhoads, Susan
Cary Nicholas, Women's Law Project, Philadelphia, Pa., for amici curiae
in Support of Appellant, Northeast Women's Center, Inc., on Behalf of
Certain Providers of Abortion Services and Other Organizations
Committed to Protecting the Right to Choose Abortion and Preserving
Access to Reproductive Health Services.
LeRoy S. Zimmerman, Atty. Gen., Gregory R. Neuhauser, Sr. Deputy
Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation
Section, Harrisburg, Pa., for amicus curiae, Com. of Pennsylvania.
J. Michael Considine, Jr., Joseph D. Shein, P.C., Philadelphia, Pa., for
amicus curiae, The Rutherford Institute of Pennsylvania.
Before SLOVITER and HUTCHINSON, Circuit Judges, and GERRY,
District Judge.*
OPINION OF THE COURT

SLOVITER, Circuit Judge.

Following a lengthy trial in this action brought by a women's health center

against a group of anti-abortion activists, the jury returned a verdict for plaintiff
on its claims under civil RICO and the state torts of trespass and intentional
interference with contract. On appeal, plaintiff challenges the district court's use
of the unclean hands doctrine to limit the injunctive relief given and the court's
order setting aside the jury's punitive damage award. Defendants, who have
filed multiple briefs, raise more than twenty issues on their cross-appeals,
including the application of civil RICO, the availability of the justification
defense, and various claims of prejudicial error at trial.

Although issues on appeal are generally considered first, we begin with a

discussion of the matters raised on defendants' cross-appeal because, if
defendants' contentions are correct, we need not reach the appellant's issues.
We will confine our opinion to those issues raised by defendants that we
believe merit discussion. 1

I.
Facts and Procedural History
3

Plaintiff-appellant, the Northeast Women's Center, Inc. (Center), is a

Pennsylvania corporation which provides gynecological services, including
pregnancy testing and abortions. The defendants-appellees are twenty-six
individuals2 (referred to collectively as Defendants) who are vigorously
opposed to abortion and who have repeatedly protested the Center's abortion
services by activities at the situs of the Center. Certain Defendants have
attended Board of Directors meetings of the Pro-Life Coalition of Southeastern
Pennsylvania and one defendant, Michael McMonagle, is its paid Executive
Director.

The Center has emphasized throughout this litigation that it is not challenging
Defendants' free speech right to make public their opposition to abortion.
Instead, this lawsuit was brought alleging illegal and tortious activity by
Defendants that went beyond Defendants' constitutional rights of speech and
protest.

The Center presented evidence at trial that established that Defendants

unlawfully entered the Center's facilities on four occasions. On December 8,
1984, approximately fifty protestors, including twelve Defendants, rushed into

the Center's premises, which at that time were located at 9600 Roosevelt
Boulevard in Northeast Philadelphia, and knocked down Center employees
who attempted to prevent the mass entry into the building. Once inside,
Defendants and others blocked access to rooms and strewed medical supplies
on the floor.
6

Ardis Ryder, then acting administrator of the Center, testified that she decided
on the basis of this incident to hire security guards for the first time in the
Center's history to protect the safety of its employees and patients. One
employee testified that she sustained injuries during this incident while
attempting to prevent Defendants and others from forcing their way into a
patient treatment room. She testified that as a result of such harassment she
resigned from her position at the Center, and did not resume employment at the
Center until after it installed a sophisticated security system. Twelve
Defendants were among the thirty persons arrested and charged with trespass
after this incident. App. at 633.

On August 10, 1985, twelve Defendants pushed into the Center's premises. An
employee who was injured as a result of Defendants' activities lost work time.
Another employee testified that after members of the group locked themselves
in an operating room, she observed a Defendant leave the operating room with
an object concealed under his coat. When the employee entered the room she
discovered that machinery had been damaged and disassembled. Twelve
Defendants were arrested and subsequently convicted of defiant trespass for the
August 1985 incident. App. at 634; see Commonwealth v. Markum, 373
Pa.Super. 341, 541 A.2d 347 (1988) (affirming conviction on appeal).

On October 19, 1985, there was another attempt by anti-abortion activists to

enter the Center. A number of persons were arrested, including twenty-four
Defendants. App. at 635. Two persons did manage to rush through the doors
and enter, knocking down a Center employee. Three Defendants were
subsequently convicted of defiant trespass. App. at 635-36.

The fourth trespass that was the subject of the federal suit took place on May
23, 1986. The jury was shown a videotape of the incident, which showed
protesters sitting down on the floor of a waiting room inside the clinic, standing
in front of patients awaiting services and castigating them, and ignoring
repeated requests that they cease trespassing and leave the building. Exhibits P76, P-77. One Defendant stated, "We're going to shut this place down." The
police eventually removed the trespassers. There was testimony that other
Defendants who were outside the premises blocked the doors to the Center and
the building in which it was located. Twenty-six persons, including sixteen

Defendants, were arrested and fifteen Defendants were subsequently convicted

for criminal conspiracy, disorderly conduct, and/or defiant trespass as a result
of this incident. App. at 637-38.
10

Witnesses at the trial in this case testified that on these and other occasions they
observed Defendants photographing patients, chanting through bullhorns,
blocking building entrances, and surrounding and pounding on the windows of
employees' cars. In fact an assistant district attorney who witnessed a
demonstration testified that the demonstrators' activity rose to a "frenzy" and
that he delayed leaving the Center out of fear for his physical safety. App. at
791-93. Videotape evidence revealed demonstrators pushing, shoving and
tugging on patients as they attempted to approach the Center, knocking over
and crossing beyond police barricades and blocking the ingress of cars. A
protester is recorded stating, "I bet you ten to one this place doesn't last six
months." Another added, "This place is going to be shut down." Exhibits P-6,
P-76, P-77. A doctor employed by the Center testified that the sound of
chanting, amplified by bullhorns, was audible in the Center's operating room.
Another doctor testified that this noise would put patients "under considerably
greater stress," especially when going under or coming out of general
anesthesia. App. at 433.

11

Three employees testified that they were repeatedly subjected to picketing at

their homes. Two of these employees stated that they resigned from their
positions at the Center because of Defendants' actions at their homes and the
Center.

12

In July 1986, the Center lost its lease and moved to a new location. Both the
director of the Center and defendant McMonagle, a leader of the activists,
attributed the Center's loss of its lease to Defendants' activities at the Center.3
The Center installed a new sophisticated security system at its new location.4 In
August 1986, protesters made a fifth attempt to enter the Center, which the
district court found was "thwarted only by the installation of sophisticated
security equipment." App. at 260.

13

In August 1985, the Center filed a civil suit in the United States District Court
for the Eastern District of Pennsylvania, alleging that Defendants had agreed
among themselves and others to disrupt the Center's business and injure its
property by, inter alia, harassing the Center's clients and employees, unlawfully
entering on its property, and destroying and damaging medical equipment. The
Center sought damages and injunctive relief under the Sherman Antitrust Act,
15 U.S.C. Secs. 1, the Clayton Act, Sec. 15, and the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961 et seq., and the

common law torts of trespass and intentional interference with contractual

relations. The district court denied Defendants' motion to dismiss the
complaint. Northeast Women's Center, Inc. v. McMonagle, 624 F.Supp. 736
(E.D.Pa.1985).
14

Thereafter, the Center sought preliminary injunctive relief, contending that

Defendants had intensified their harassment of patients and staff, that they were
acting to prevent the Center from moving to its new location, and that
Defendants had forcibly entered its premises twice since the complaint was
filed. The district court's denial of a preliminary injunction was vacated by this
court because the district court had not made the factual findings required under
Fed.R.Civ.P. 52(a). Northeast Women's Center, Inc. v. McMonagle, 813 F.2d
53 (3d Cir.1987). We suggested "in the strongest possible terms" that the
parties agree to convert the action into a final injunction hearing, id. at 54-55,
which they did.

15

At the close of a three-week trial, the district court directed a verdict in favor of
Defendants on the Sherman Act charge, but sent to the jury the remaining
RICO, trespass, and intentional interference with contract claims. In response to
a detailed series of interrogatories prepared by the district court, the jury found
twenty-seven Defendants liable under RICO and assessed $887 in damages on
this claim, reflecting the cost of repairing certain medical equipment, which the
district court trebled pursuant to 18 U.S.C. Sec. 1964(c) (1982). The jury found
that three Defendants had interfered with the Center's contracts with its
employees but found no proximate loss to have resulted from this interference
and awarded no damages on this claim. Finally, it found twenty-four
Defendants liable for trespass, and assessed $42,087.95 in compensatory
damages and $48,000 in punitive damages ($2,000 per defendant).

16

The district court denied Defendants' motion for a new trial and judgment
notwithstanding verdict except that it granted j.n.o.v. on the punitive damages
award and set aside the jury's award of punitive damages on the ground that the
Center had substantially prejudiced Defendants by failing to request punitive
damages in a timely and consistent manner and by successfully precluding
Defendants from presenting evidence of motive that would have been relevant
on the punitive damages issue. 665 F.Supp. 1147.

17

The court declined to give the Center any injunctive relief on its successful
claims on the RICO and interference with contract counts on the ground that
such relief was barred by the doctrine of unclean hands, based on evidence that
a physician practicing at the Center had failed to comply with a fetal tissue
inspection provision of the Pennsylvania Abortion Control Act, 18

Pa.Cons.Stat.Ann. Sec. 3214(c) (Purdon 1983).

18

The court granted injunctive relief on the Center's trespass claim, however, and
enjoined Defendants from entering the Center's premises, entering the parking
lot adjacent to the Center for the purpose of protesting there, blocking or
attempting to block the entrances to the Center or parking lot, and "[i]nhibiting
or impeding or attempting to inhibit or impede the free and unmolested ingress
and egress" to the Center or parking lot. 665 F.Supp. at 1163. The court
specifically stated, that "[n]o portion of this Judgment shall be construed by any
law enforcement officer so as to restrain the peaceful protesting, picketing,
demonstrating, chanting, or leafletting by the defendants on the sidewalks
abutting [the adjacent] road, EXCEPT as provided [under the rest of the
order]." Id. at 1164.

19

As noted above, each side appeals. We turn first to the Defendants' challenge to
the jury's verdict under civil RICO, the only remaining federal claim.

II.
Issues on Cross-Appeal
A. Application of Civil RICO
20

Plaintiff pled, and the jury's verdict shows that it found, a RICO violation based
on a pattern of extortionate acts as defined under the Hobbs Act. The civil
provisions of RICO allow "[a]ny person injured in his business or property"
through a violation of the statute to file suit in federal district court. 18 U.S.C.
Sec. 1964(c) (1982). A defendant may be held liable under RICO for engaging
through an enterprise in "a pattern of racketeering activity," 18 U.S.C. Sec.
1962(c),5 such racketeering activity being manifested by, inter alia, any act,
including robbery and extortion, which is indictable under 18 U.S.C. Sec. 1951,
also known as the Hobbs Act. 18 U.S.C. Sec. 1961(1)(B). Defendants'
arguments challenging the verdict against them under RICO are directed both to
the application of civil RICO as such and to the application of the Hobbs Act.

21

In Sedima, S.P.R.L. v. Imrex, Co., 473 U.S. 479, 499-500, 105 S.Ct. 3275,
3286-3287, 87 L.Ed.2d 346 (1985), the Supreme Court acknowledged that civil
RICO was being applied in contexts far beyond those originally intended, but
explained that "this defect--if defect it is--is inherent in the statute as written,
and its correction must lie with Congress. It is not for the judiciary to eliminate
the private action in situations where Congress has provided it...." Id. at 499500, 105 S.Ct. at 3286-3287. In light of the Court's statements, we are not free

to read additional limits into RICO once a plaintiff has made out all of the
elements required for a finding of liability under the statute's explicit
provisions. See Gilbert v. Prudential-Bache Sec., 769 F.2d 940, 942 (3d
Cir.1985) ("The Court [in Sedima ] refused to read into civil RICO any
requirement, unexpressed by Congress, that the statute be confined to situations
implicating organized crime....").
22

Defendants argue that because their actions were motivated by their political
beliefs, civil RICO is inapplicable. Defendants' description of their conduct as
"civil disobedience" does not thereby immunize it from statutes proscribing the
very acts the jury found Defendants committed.

23

In upholding a conviction under RICO over defendants' objection to the

government's contention that the robberies were committed to finance
defendants' religious Black Muslim organization, this court stated, "The First
Amendment, which guarantees individuals freedom of conscience and prohibits
governmental interference with religious beliefs, does not shield from
government scrutiny practices which imperil public safety, peace or order."
United States v. Dickens, 695 F.2d 765, 772 (3d Cir.1982), cert. denied, 460
U.S. 1092, 103 S.Ct. 1792, 76 L.Ed.2d 359 (1983) (citations omitted). We
would have grave concerns were these or any other defendants held liable
under civil RICO for engaging in the expression of dissenting political opinions
in a manner protected under the First Amendment. The district court's careful
instructions to the jury with respect to the scope of the protections of the First
Amendment precluded such a result here.

24

The district court told the jury, "The First Amendment of the United States
Constitution guarantees the defendants a right to express their views. The
defendants have a constitutional right to attempt to persuade the Northeast
Women's Center to stop performing abortions. They have a constitutional right
to attempt to persuade the Center's employees to stop working there and they
have a constitutional right to attempt to persuade the Center's patients not to
have abortions there.... The mere fact, also, that the defendants or some of their
protests may be coercive or offensive, does not diminish the First Amendment
right to a protest." App. at 1010.

25

However, the court also told the jury, correctly, that, "the First Amendment
does not offer a sanctuary for violators. The same constitution that protects the
defendants' right to free speech, also protects the Center's right to abortion
services and the patients' rights to receive those services." App. at 1011. The
jury's award of damages under RICO was based on the destruction of the
Center's medical equipment during one of the incidents of forcible entry into

the Center. This award establishes that the jury found that Defendants' actions
went beyond mere dissent and publication of their political views.
26

Defendants also argue that the Center failed to show that it suffered an injury to
its "business or property" as required by RICO. 18 U.S.C. Sec. 1964(c). The
district court explicitly charged the jury with respect to this requirement. App.
at 1020. Although Defendants argue that the Center failed to show any
economic injury from the RICO violation, in effect Defendants' argument slides
from the injury requirement under RICO to their claim that the Hobbs Act does
not cover extortion of intangible rights. We will keep these issues analytically
distinct. The RICO requirement of injury is met by evidence of injury to
plaintiff's business or property. The Center claimed that it suffered tangible
injury to its medical equipment during the forcible entry which was part of the
alleged pattern of extortionate acts designed to drive it out of business. RICO
requires no more. In Sedima, the Court rejected the notion of any distinct
"racketeering injury," 473 U.S. at 495-97, 105 S.Ct. at 3284-85, holding
expressly that it is not necessary that a plaintiff show that it suffered "a
competitive injury." Id. at 497 n. 15, 105 S.Ct. at 3285 n. 15. The damage to the
Center's property was sufficient to meet RICO's injury requirement.6 See
Malley-Duff & Assocs. v. Crown Life Ins. Co., 792 F.2d 341, 355 (3d
Cir.1986), aff'd on other grounds, 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d
121 (1987) (delay, added expenses and inconvenience caused by defendants'
interference with a lawsuit sufficient to meet injury requirement under RICO);
Zap v. Frankel, 770 F.2d 24, 26 (3d Cir.1985) (district court's holding that
plaintiff had to show injury " 'of the type the RICO statute was intended to
prevent' " reversed; RICO plaintiff need allege "no independent 'racketeering
injury' apart from the injury caused by the predicate acts").

27

Defendants also challenge the application of the Hobbs Act, which provided
the predicate offenses under RICO. Defendants argue that the court's charge
failed to deal "with the economic motivation behind the crime of extortion,"
which they claim is a necessary element under the Hobbs Act. Brief of CrossAppellants O'Brien et al. at 26 (hereafter "O'Brien Brief").7 Defendants point to
no charge proffered by them on economic purpose. In any event, Defendants'
contention ignores well-established precedent holding that lack of economic
motive does not constitute a defense to Hobbs Act crimes. In United States v.
Cerilli, 603 F.2d 415, 420 (3d Cir.1979), cert. denied, 444 U.S. 1043, 100 S.Ct.
728, 62 L.Ed.2d 728 (1980), we upheld a Hobbs Act conviction for solicitation
of political contributions, stating, "[i]t is well-established that a person may
violate the Hobbs Act without himself receiving the benefits of his coercive
actions." See United States v. Starks, 515 F.2d 112, 124 (3d Cir.1975) ("there is
no exception to the Hobbs Act" permitting extortion "for a religious purpose");

see also United States v. Anderson, 716 F.2d 446 (7th Cir.1983) (upholding
Hobbs Act conviction of anti-abortion activists for threatening doctor to induce
him to cease performing abortions).
28

Defendants contend, however, that "economic injury" is an essential element of

extortion when it is used as a RICO predicate offense. O'Brien Brief at 29.
They argue that the court's charge improperly relied on extortion of intangible
"rights". Id. at 28.

29

The "right" on which the Center's case was predicated was the right to continue
to operate its business. The Center's extortion claim was that Defendants used
force, threats of force, fear and violence in their efforts to force the Center out
of business. The court told the jury that, "[s]pecifically, defendants are charged
with attempting and conspiring to extort from the Center its property interest in
continuing to provide abortion services[;] from its employees, their property
interest in continuing their employment with the Center[;] and from patients,
their property interest in entering into a contractual relationship with the
Center." App. at 1009.8

30

Rights involving the conduct of business are property rights. As we pointed out
in United States v. Local 560, 780 F.2d 267, 281 (3d Cir.1985), cert. denied,
476 U.S. 1140, 106 S.Ct. 2247, 90 L.Ed.2d 693 (1986),

31 circuits which have considered this question are unanimous in extending the
other
Hobbs Act to protect intangible, as well as tangible, property. See United States v.
Zemek, 634 F.2d 1159 (9th Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67
L.Ed.2d 341 (1981) (right to solicit business accounts); United States v. Santoni,
585 F.2d 667 (4th Cir.1978), cert. denied, 440 U.S. 910, 99 S.Ct. 1221, 59 L.Ed.2d
459 (1979) (right to make business decisions free from outside pressure wrongfully
imposed); United States v. Nadaline, 471 F.2d 340 (5th Cir.), cert. denied, 411 U.S.
951, 93 S.Ct. 1924, 36 L.Ed.2d 414 (1973) (right to solicit business accounts);
United States v. Tropiano, 418 F.2d 1069 (2d Cir.1969), cert. denied, 397 U.S. 1021,
90 S.Ct. 1262, 25 L.Ed.2d 530 (1970) (right to solicit business accounts).
32

It is, of course, no defense to extortion that Defendants did not succeed in their
ultimate goal, although, as McMonagle's own letter admitted, Defendants'
activities did contribute to the Center's loss of its lease at the Roosevelt
Boulevard location. App. at 480-83; see note 3 supra. Attempted extortion and
conspiracy to commit extortion are crimes under the Hobbs Act, see 18 U.S.C.
Sec. 1951(a), and "any act which is indictable under [the Hobbs Act]" is a
predicate offense under RICO. 18 U.S.C. Sec. 1961(1)(B). We thus reject
Defendants' challenges dealing with the RICO verdict.

B. The Justification Defense

33

Defendants argue that the district court erred in precluding the admission of
evidence relating to their claims of justification and in failing to charge the jury
regarding such a defense. The district court relied on our opinion in United
States v. Malinowski, 472 F.2d 850 (3d Cir.), cert. denied, 411 U.S. 970, 93
S.Ct. 2164, 36 L.Ed.2d 693 (1973), in holding that the justification defense was
unavailable to Defendants. In Malinowski, a defendant had falsely claimed
excessive exemptions on a form submitted to the Internal Revenue Service to
dramatize his protest to the Vietnam War. We rejected the defense of good
faith motive, holding that the defendant's motives could not constitute an
acceptable legal defense. Id. at 856. We stated that, "[s]uch a position
represents a feeble effort to emasculate basic principles of civil disobedience,
and, simply stated, is invalid.... [T]he actor wants the best of both worlds; to
disobey, yet to be absolved of punishment for disobedience." Id. at 857.

34

Similarly, in United States v. Romano, 849 F.2d 812, 816 n. 7 (3d Cir.1988),
we recently reaffirmed the irrelevance of any defense based on an intent to save
lives in a case charging a defendant, who was associated with the Epiphany
Plowshares, with damaging government property, conspiring to do so, and
entering a military installation for an unlawful purpose. We stated that, "[the
defendant's] end motive of protecting innocent lives could not adequately
negate or explain her specific intent to achieve this end by breaking into a
military installation and disabling military aircraft." Id. (citations omitted).
Thus, it is clear that Defendants' claim of justification does not present a viable
defense to the RICO charge.

35

Defendants argue, however, that justification is a defense under Pennsylvania

law, citing to the Pennsylvania Crimes Code, 18 Pa.Cons.Stat.Ann. Sec. 503(a)
(Purdon 1983)9 , and its civil analogue. See Restatement (Second) of Torts,
Secs. 76, 196 (1965). In Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d
806 (1985), the Pennsylvania Supreme Court held that under section 503 of the
Pennsylvania Crimes Code, the availability of the justification defense rests on
a defendant's ability to show: "(1) that the actor was faced with clear and
imminent harm ...; (2) that the actor could reasonably expect that [his/her]
actions would be effective in avoiding this greater harm; (3) that there [was] no
legal alternative [that would have been] effective in abating the harm; and (4)
that the Legislature has not acted to preclude the defense by a clear and
deliberate choice regarding the values at issue." 508 Pa. at 378, 498 A.2d at
809. The defendants in Capitolo had been convicted for criminal trespass based
on their sit-in demonstration at a nuclear power plant which caused no injuries
or property damage. The Supreme Court of Pennsylvania, applying the

foregoing analysis, held that "[t]he trial court was correct in ruling that, as a
matter of law, justification was not an available defense." 508 Pa. at 379, 498
A.2d at 809.
36

In a subsequent case, the Court applied the Capitolo factors to the justification
defense codified under another section of the Crimes Code. Commonwealth v.
Berrigan, 509 Pa. 118, 124, 501 A.2d 226, 230 (1985). On the basis of those
factors, the Court rejected the contention of defendants convicted of burglary,
criminal mischief, and criminal conspiracy in connection with a protest at a
nuclear arms manufacturing facility that their actions were permitted to avert a
nuclear holocaust.

37

The test in Capitolo was recently applied by the Superior Court of Pennsylvania
in Commonwealth v. Wall, 372 Pa.Super. 534, 539 A.2d 1325 (1988), to
defendants convicted of criminal trespass and defiant trespass during an
abortion protest. In that unanimous opinion, the court upheld the trial court's
order precluding the defendant from raising the justification defense. The Wall
court found that the justification defense was not available because the
defendant could not establish "any " of the four requirements set forth in
Capitolo. 372 Pa.Super. at 543, 539 A.2d at 1329 (emphasis in original). Wall
could not demonstrate that he was faced with a clear and readily apparent harm,
because the law does not recognize abortions as a harm, 372 Pa.Super. at 54042, 539 A.2d at 1328-29; Wall could not reasonably have expected that the
demonstration would be effective because his disruption of the clinic was only
temporary, 372 Pa.Super. at 542, 539 A.2d at 1329; he had available legal
alternatives, such as lobbying and providing information to the clinic's clients
while standing on public property, id.; and Pennsylvania legislation, while it
regulated abortion, did not prohibit a woman from obtaining an abortion. 372
Pa.Super. at 542-43, 539 A.2d at 1329; see also Commonwealth v. Markum,
373 Pa.Super. 341, 541 A.2d 347 (1988) (announcing judgment of the court
that justification defense not available against criminal convictions stemming
from August 1985 invasion of the Center).

38

The same analysis is applicable here. We emphasize in particular the numerous

legal alternatives that Defendants had available to pursue their goal of
persuading women not to have abortions. For example, they could continue to
march, go door-to-door to proselytize their views, distribute literature,
personally or through the mails, and contact residents by telephone, short of
harassment. See Frisby v. Schultz, --- U.S. ----, 108 S.Ct. 2495, 2501-02, 101
L.Ed.2d 420 (1988).

39

In one of their reply briefs, Defendants argue that Wall should be distinguished

39

because the court there did not focus on Defendants' argument made here that
abortions conducted in the second, as opposed to the first, trimester of
pregnancy, together with the harm suffered by women undergoing abortions,
amount to a harm of sufficient magnitude and imminence that the justification
defense should be allowed. Because Defendants must meet each Capitolo
factor, however, see Capitolo, 508 Pa. at 378-79, 498 A.2d at 809;
Commonwealth v. Berrigan, 509 Pa. 118, 124, 501 A.2d 226, 229 (1985), we
need not reach their argument concerning the character of the harm involved.
We find no error in the district court's rejection of Defendants' justification
defense.

C. The Conduct of the Trial

40

Defendants rather vehemently complain about the conduct of the trial. They
point to a number of rulings by the district court which they argue constitute
reversible error either as considered severally or as added together to create an
unfairly prejudicial atmosphere at trial. In particular, they challenge the court's
grant of the Center's motion in limine to exclude evidence of Defendants'
motives and its refusal to grant a mistrial after the Center's counsel made
several allegedly "prejudicial and inflammatory" statements.

41

The jury was told in the Center's opening remarks that Defendants were
opposed to abortion as a matter of principle. The court, in its jury charge, told
the jury that "[w]e know why these people are up there and that is because they
disagree with the position of the plaintiffs, that there should be abortions
performed." App. at 946.

42

However, the district court's order precluded Defendants from putting on

further evidence of their motives without making a prior showing of
relevance.10 Defendants acknowledged at oral argument that they never made
an offer of proof of the relevance of the evidence of motive which they now
argue they desired to present. Having failed to make such an offer of proof,
they have waived this issue on appeal. See Fed.R.Evid. 103(a)(2). Moreover,
on the merits, we note that we upheld a similar in limine order in United States
v. Romano, 849 F.2d at 815-16.

43

The district court's orders denying Defendants' motions for a mistrial based on
the allegedly inflammatory remarks made by the Center's counsel during the
course of the trial are reviewed under an abuse of discretion standard. See
United States v. DeRosa, 548 F.2d 464, 473 (3d Cir.1977). We have examined
each portion of the record to which Defendants refer us. Although we do not
place our imprimatur on some of the conduct by various trial counsel, we

conclude that the district court did not abuse its discretion in denying
Defendants' motion for a mistrial. Far from having deprived Defendants of
fundamental rights, we conclude that Judge James M. Kelly handled this
emotionally heated trial fairly and evenhandedly. We will affirm all of the
orders challenged by Defendants on their cross-appeals.
III.
Issues on Appeal
A. Application of The Unclean Hands Doctrine
44
45

The first of the two issues raised by the Center on its appeal challenges the
limited injunctive relief awarded by the district court. The district court ruled
that the Center was precluded from obtaining injunctive relief on any charge
other than trespass because of the unclean hands doctrine. Although the district
court enjoined Defendants from trespassing on the Center's property or the
private parking lot next to the Center, and barred Defendants from obstructing
the entrances to those premises, it gave no injunctive relief with respect to the
acts of harassment and intimidation of the Center's employees and patients
which provided the evidentiary basis for the jury's liability verdicts on the
RICO and interference with contract claims.

46

In its discussion of the need for injunctive relief, the district court stated, "The
spirited nature of [Defendants'] views permits no remorse or regret for their
actions. No evidence produced at trial suggests that their unlawful modes of
protest will cease. In fact, the evidence suggests precisely the opposite." 665
F.Supp. 1152. We can think of no reason why this finding, although made in
the context of the district court's trespass discussion, is not equally applicable to
Defendants' other activities. Nonetheless, the court refused to grant the
additional injunctive relief requested by the Center because it concluded that
section 3214(c) of the Pennsylvania Abortion Control Act had been violated
because one of the Center's doctors testified that remains from those fetuses
aborted in the second trimester were inspected for completeness by a pathology
expert who was not board certified or board eligible.11

47

The district court held that the Center was charged with knowledge of the
doctor's failure to comply with the Act's requirements, and that therefore the
Center engaged in "inequitable conduct [which] bars injunctive relief under
RICO and interference with contract causes of action," 665 F.Supp. 1157-58.

48

In the course of making this ruling, the district court felt compelled to consider

and rule upon the constitutionality of section 3214(c), although the

constitutionality of the Pennsylvania statute was not an issue in this case and
was then pending before another judge of the same court. Consequently, on
appeal here the parties have devoted extensive briefing to this issue, the
Attorney General has submitted a brief seeking to uphold the court's ruling on
this issue, and the Center and some amici argue that this section is not
operative. See note 12 infra. The parties' preoccupation with the
constitutionality of section 3214(c) represents a diversion to collateral issues.
49

Ordinarily, an abuse of discretion standard applies to our review of the district

court's application of the unclean hands doctrine. However, the parameters of
the unclean hands doctrine implicate a matter of law.

50

As this court has explained, the equitable doctrine of unclean hands is not "a
matter of 'defense' to the defendant." Gaudiosi v. Mellon, 269 F.2d 873, 882
(3d Cir.), cert. denied, 361 U.S. 902, 80 S.Ct. 211, 4 L.Ed.2d 157 (1959).
Rather, in applying it "courts are concerned primarily with their own integrity,"
id., and with avoiding becoming " 'the abettor of iniquity.' " Monsanto Co. v.
Rohm & Haas Co., 456 F.2d 592, 598 (3d Cir.), cert. denied, 407 U.S. 934, 92
S.Ct. 2463, 32 L.Ed.2d 817 (1972) (citations omitted). Thus, the doctrine is to
be applied "only where some unconscionable act of one coming for relief has
immediate and necessary relation to the equity that he seeks in respect of the
matter in litigation." Keystone Driller Co. v. General Excavator Co., 290 U.S.
240, 245-46, 54 S.Ct. 146, 147-48, 78 L.Ed. 293 (1933).

51

The same principle applies under Pennsylvania law. See In Re Estate of

Pedrick, 505 Pa. 530, 544, 482 A.2d 215, 222 (1984). Pennsylvania's Supreme
Court has stated that the unclean hands doctrine is not to be applied "to
collateral matters not directly affecting the equitable relations which exist
between the parties." Shapiro v. Shapiro, 415 Pa. 503, 507, 204 A.2d 266, 268
(1964).

52

Even if there had been a violation of the requirement of section 3214(c) relating
to examination of fetal tissue by one of the physicians practicing at the Center,
an issue we do not reach,12 such a violation is at most collateral to the matter
involved in this lawsuit. Section 3214(c) is a technical provision aimed at
policing compliance with the now inoperative nonviability certification
requirement of section 3211.13 It has no connection at all to the Defendants'
actions which the jury found violated both federal and state law.

53

A recent Pennsylvania Supreme Court decision is illustrative of that Court's

application of the unclean hands doctrine. In In re Estate of Pedrick, 505 Pa.

530, 544, 482 A.2d 215, 222 (1984), the Court held that unclean hands barred
an attorney seeking to recover against an estate where the attorney sought "to
secure a benefit from the very conduct which the accepted standards of the
profession preclude." In contrast, in this case, the Center's alleged failure to
insure that the pathologist who examined the fetal tissue was Board certified or
Board eligible is not sufficiently, if at all, related to "the particular matter in
litigation," Shapiro, 415 Pa. at 507, 204 A.2d at 268, to warrant application of
the unclean hands doctrine to preclude granting the Center effective equitable
relief from the Defendants' harassment of the Center, its employees, and its
patients. Because the unclean hands doctrine can be applied only to conduct
relating to the matter in litigation, we conclude that the district court erred in
applying the unclean hands doctrine in this situation.
54

Defendants argue that further injunctive relief cannot be awarded under RICO
because injunctive relief is not available to private parties under that statute's
civil provisions. This is a question of first impression for this court and remains
an open question in most other courts. See Trane Co. v. O'Connor Sec., 718
F.2d 26, 28 (2d Cir.1983) (expressing "serious doubt" about availability of
injunctive relief in private civil RICO cases); Dan River, Inc. v. Icahn, 701 F.2d
278, 290 (4th Cir.1983) (same); Bennett v. Berg, 685 F.2d 1053, 1064 (8th
Cir.1982) (hinting that injunctive relief may be available). But see Religious
Technology Center v. Wollersheim, 796 F.2d 1076, 1077 (9th Cir.1986), cert.
denied, 479 U.S. 1103, 107 S.Ct. 1336, 94 L.Ed.2d 187 (1987) (injunctive
relief not available); In Re Fredeman Litigation, 843 F.2d 821, 828-30 (5th
Cir.1988) (suggesting approval of Wollersheim ). At oral argument the Center
acknowledged that all the injunctive relief it seeks could be granted under its
state law claim of interference with contractual relations, and therefore we will
not reach to decide the RICO issue.

55

We see no impediment to basing injunctive relief on the interference with

contractual relations verdict. The Center pleaded and proved that Defendants
embarked on a willful campaign to use fear, harassment, intimidation and force
against the Center through targeting its employees so that they would, and
some did, sever their employment at the Center. Employees testified that they
were even harassed at their homes and that their children were afraid.
Defendants stress that the jury found no damages on its interference with
contractual relations verdict. Of course, the fact the Center could not show
damage on this claim or that not all the Center's employees have been
sufficiently frightened so as to terminate their contractual relations with the
Center does not preclude injunctive relief designed to prevent future harm.

56

Defendants argue that the district court is limited in granting injunctive relief
under the interference with contractual relations claim to enjoining the three
Defendants found liable under that charge. However, injunctions under
Pennsylvania law are commonly entered against defendants and "all persons
acting in concert with them." See, e.g., Adler, Barish, Daniels, Levin &
Creskoff v. Epstein, 482 Pa. 416, 422, 393 A.2d 1175, 1178 (1978) (reinstating
permanent injunction containing this language in intentional interference with
contract case), cert. denied and appeal dismissed, 442 U.S. 907, 99 S.Ct. 2817,
61 L.Ed.2d 272 (1979).14 In fact, the Superior Court of Pennsylvania recently
considered and rejected a similar argument in upholding a contempt order
entered against anti-abortion activists for violating an injunction prohibiting
certain individuals and "all others acting in concert with them" from entering an
abortion clinic for purposes of interfering with its services. Crozer-Chester
Medical Center v. May, 366 Pa.Super. 265, 267, 531 A.2d 2, 4 (1987), appeal
dismissed, --- Pa. ----, 550 A.2d 196 (1988); see also Neshaminy Water
Resources Auth. v. Del-Aware Unlimited, Inc., 332 Pa.Super. 461, 471 n. 2,
481 A.2d 879, 883-84 & n. 2 (1984) (language binding all persons acting "in
concert" with named defendants not impermissibly broad).

57

Fed.R.Civ.P. 65(d) expressly provides an injunction will be binding on persons

"in active concert or participation" with the parties enjoined who receive actual
notice of the order. In light of the jury's finding that the three Defendants
against whom the verdict was entered on the interference with contractual
relations claim combined in an enterprise with other Defendants, it appears that
the record would support an injunction directed to concerted conduct.

58

The Center argues that because this is now the second time that the district
court failed to grant it effective injunctive relief, we should ourselves either
enter its proposed injunction or at least we should direct the district court to do
so in clear and unambiguous terms. While such a course might be expeditious,
we decline to fix the terms of the injunction.15 The district court is in a better
position, in compliance with the requirements of Rule 65(d), to set the terms of
an appropriate injunction based on the evidence in the record.

59

Since we have found unsupportable as a matter of law the only basis on which
the district court declined to issue a more extensive injunction, we must remand
this matter so that it can reconsider the Center's arguments that the injunction
entered is inadequate.

B. Punitive Damages
60

The second issue raised by the Center challenges the district court's order

60

The second issue raised by the Center challenges the district court's order
granting Defendants' motion for a j.n.o.v. setting aside the jury's award of
$2,000 punitive damages against each of twenty-four Defendants found liable
for trespass. The district court explained that it entered the j.n.o.v. because it
had erred in submitting the issue of punitive damages in its charge to the jury.
In this context, our standard of review is abuse of discretion. See United States
v. Fischbach and Moore, Inc., 750 F.2d 1183, 1195 (3d Cir.1984), cert. denied,
470 U.S. 1029, 105 S.Ct. 1397, 84 L.Ed.2d 785 (1985) (points for charge
reviewed for abuse of discretion).

61

The district court gave a number of reasons for setting aside the punitive
damages. It referred to the Center's failure to mention punitive damages in its
pretrial memorandum as it was required to do under a local rule; the Center's
failure to object to the court's pretrial order specifying the damage elements in
the case, which did not include punitive damages; the Center's untimely request
for a charge on punitive damages; and the court's preclusion of Defendants'
evidence on motive in response to the Center's motion in limine. The latter
ground alone is sufficient basis to uphold the court's order.

62

It is clear that under Pennsylvania law motive would have been relevant to the
issue of punitive damages. See Chambers v. Montgomery, 411 Pa. 339, 344-45,
192 A.2d 355, 358 (1963); Hughes v. Babcock, 349 Pa. 475, 480-81, 37 A.2d
551, 554 (1944). However, under the court's in limine order, Defendants were
precluded from referring to or relying on their motives unless they made a prior
showing of relevance. While it is true that Defendants did not proffer motive
evidence as relevant to their defense to punitive damages, the court's opinion
suggests that Defendants were not on notice during the trial that the award of
punitive damages was still an issue. A plaintiff may be barred from receiving
relief it requests if its conduct "improperly and substantially prejudiced the
other party." Albemarle Paper Co. v. Moody, 422 U.S. 405, 424, 95 S.Ct. 2362,
2375, 45 L.Ed.2d 280 (1975). As in Albemarle, the Center's "not merely tardy,
but also inconsistent" conduct with respect to its claim for punitive damages,
id., prejudiced Defendants' ability to mount a case against imposition of such
damages. It follows that the district court's ruling that the Center should not
have been granted a jury charge on punitive damages was well within the scope
of its discretion. Thus, we will not disturb the district court's award of a j.n.o.v.
on this issue.

IV.
Conclusion
63

In summary, we have concluded on the cross-appeal that civil RICO could

appropriately be applied to Defendants' intimidation and harassment of the

Center resulting in the destruction of its property, that the district court did not
err in rejecting the justification defense proffered by Defendants and in
precluding evidence of Defendants' motives unless they showed the specific
relevance of such evidence, and that there is no basis in the district court's
conduct or rulings to order a new trial. On the Center's appeal, we have upheld
the district court's order setting aside the punitive damages. Finally, we have
held that the court erred in applying the unclean hands doctrine on a collateral
matter to preclude injunctive relief.
64

For the reasons expressed herein, we will remand for further consideration of
the injunctive relief to be granted in light of our opinion. We will affirm the
district court's judgment in all other respects.

Hon. John F. Gerry, Chief Judge, United States District Court for the District of
New Jersey, sitting by designation

We conclude that the district court committed no error of law or abuse of

discretion with respect to all other issues raised by defendants. Those issues are
directed in the main to the court's denial of a stay until state criminal charges
then pending against defendants were resolved; its rulings on the relevance of
certain videotape and witness testimony; and its rejection of defendants'
argument that it was collaterally estopped from issuing injunctive relief. See
also note 4 infra

There were 42 individuals sued. Plaintiff ultimately dismissed its claims against
11 defendants either before or during trial. The court gave a directed verdict to
four defendants, and dismissed one post-trial

A fundraising letter signed by McMonagle, which was admitted into evidence,

stated:
Our organization is encouraging and organizing increasingly effective protests
at these abortion chambers.... In March, 1985 we received the welcome news
that the Northeast Women's Center abortion chamber ... would not have its
lease renewed.... [T]his abortion chamber lost its lease because of the persistent
prayers and protests of Pro Life citizens.
App. at 480-82.

Defendants challenge the measure of trespass damages, asserting that the

Center cannot recover for its increased security costs. The Center, with

appropriate citation to the record, notes that there was no objection to the
district court's charge on this point. Defendants do not counter with any
reference to the record showing that they properly preserved the issue.
Accordingly, it is waived
5

The district court charged the jury that in order to prove an enterprise existed "
[a]ll the plaintiff has to prove is the existence of an ongoing organization, either
formal or informal in nature in which the various associates functioned as a
continuing unit. The enterprise must have an existence separate and apart from
the pattern of activity in which it engages." App. at 1006. Defendants did not
object to this portion of the charge

There was ample evidence that the Center, a profit-making institution,

advertised in interstate commerce and drew patients from other states, thereby
satisfying the RICO interstate commerce requirement

The Center argues that the evidence contradicts Defendants' claim that their
activity was completely devoid of economic purpose, pointing to McMonagle's
testimony that he raised $120,000 a year for the Pro-Life Coalition of
Southeastern Pennsylvania which coordinated the protests at the Center and
that he received a salary of $32,000 a year as the director of this organization.
App. at 880-81. Because we conclude that economic motivation is unnecessary,
we do not decide whether this evidence would be sufficient to show economic
motivation

We reject Defendants' argument that the district court improperly allowed

extortion of employees to be asserted as predicate offenses. The evidence
establishes that the harassment of Defendants' employees and patients was
directly related to Defendants' goal to shut down the Center

Section 503 of the Crimes Code provides:

Sec. 503. Justification generally.
(a) General rule.--Conduct which the actor believes to be necessary to avoid a
harm or evil to himself or to another is justifiable if:
(1) the harm or evil sought to be avoided by such conduct is greater than that
sought to be prevented by the law defining the offense charged;
(2) neither this title nor other law defining the offense provides exceptions or
defenses dealing with the specific situation involved; and
(3) a legislative purpose to exclude the justification claimed does not otherwise

plainly appear.
(b) Choice of evils.--When the actor was reckless or negligent in bringing about
the situation requiring a choice of harms or evils or in appraising the necessity
for his conduct, the justification afforded by this section is unavailable in a
prosecution for any offense for which recklessness or negligence, as the case
may be, suffices to establish culpability.
10

The district court's order was, in relevant part, as follows:

The plaintiff's motion to preclude the introduction of evidence concerning
justification and motive is GRANTED. Defense counsel may, in the opening
statement to the jury, explain the circumstances surrounding the defendants'
presence in the plaintiff's property. Counsel may not extract testimony or
introduce evidence of the defendants' beliefs on abortion absent a prior
demonstration of the relevance of the proposed evidence. Counsel may not
argue or imply to the jury, in either an opening statement or closing argument,
that the defendant's beliefs afford them any type of legal justification defense.
App. at 124.

11

18 Pa.Cons.Stat.Ann. Sec. 3214(c) provides:

When there is an abortion performed after the first trimester of pregnancy
where the physician has certified the unborn child is not viable, the dead unborn
child and all tissue removed at the time of the abortion shall be submitted for
tissue analysis to a board eligible or certified pathologist. If the report reveals
evidence of viability or live birth, the pathologist shall report such findings to
the department within 15 days and a copy of the report shall also be sent to the
physician performing the abortion. Intentional, knowing, reckless or negligent
failure of the physician to submit such an unborn child or such tissue remains to
such a pathologist for such a purpose, or intentional, knowing or reckless failure
of the pathologist to report any evidence of live birth or viability to the
department in the manner and within the time prescribed is a misdemeanor of
the third degree.

12

Because, as we hold in the text, the district court should not have reached that
issue, we venture no opinion on the district court's conclusions that the Center
failed to comply with section 3214(c) and that section 3214(c) is constitutional
and enforceable under the statute in its present form

13

In American College of Obstetricians and Gynecologists v. Thornburgh, 737

F.2d 283 (3d Cir.1984), aff'd, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779
(1986), we held unconstitutional section 3211(a), the provision that required

physicians to certify the nonviability of fetuses aborted after the first trimester
of pregnancy. We expressly noted that the issue of the constitutionality of the
related provision, section 3214(c), had been withdrawn from our consideration,
737 F.2d at 302. Thus, the continued validity of section 3214(c) remains an
open question. The Center and some amici argue, however, that because
section 3214(c) only requires inspection of fetal tissue after physicians have
certified the nonviability of the fetus, and no such certification can now be
required, section 3214(c) can have no effect. The district court did not address
this argument, nor do we
14

Although Defendants argue that injunctive relief cannot be ordered when there
has been no award of damages, we note that in Adler Barish only injunctive
relief but not damages were awarded. See 482 Pa. at 419, 393 A.2d at 1176

15

The proposed injunction would have imposed time, place and manner
restrictions, including limitation of the number of demonstrators, the use of
sound amplification during surgical procedures at the Center, and the
harassment of staff and patients. We note that since the district court's opinion,
the Supreme Court has shed additional light on the issue of residential picketing
in its opinion in Frisby v. Schultz, --- U.S. ----, 108 S.Ct. 2495, 101 L.Ed.2d 420
(1988)